Common use of Certain Representations; Reservation and Availability of Shares of Common Stock or Cash Clause in Contracts

Certain Representations; Reservation and Availability of Shares of Common Stock or Cash. (a) The Company represents and warrants that this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants and, when issued, the Warrant Shares, in each case, are free and clear of all liens and encumbrances, are fully paid and non-assessable and have been duly authorized, executed and issued by the Company and, assuming due authentication of the Warrants by the Warrant Agent pursuant hereto, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company represents and warrants that, immediately prior to the consummation of the offering described in the Registration Statement, the authorized capital stock of the Company consists of (i) 75,000,000 shares of Common Stock, of which 9,216,209 shares of Common Stock are issued and outstanding, 2,070,000 shares of Common Stock are reserved for issuance upon exercise of the Series A Warrants, 1,690,500 shares of Common Stock upon exercise of Series B Warrants and not more than 827,004 shares of Common Stock are reserved for issuance upon exercise of employee or other stock options and (ii) 5,000,000 shares of preferred stock, $.001 par value per share, of which no shares are outstanding. The Company represents and warrants that the shares of Common Stock issued to the holder under the Registration Statement, when issued, were free and clear of all liens and encumbrances, fully paid and non-assessable and were duly authorized by the Company. (c) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and all other convertible securities, options and other instruments of the Company. (d) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock in a name other than that of the registered holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any such certificate for such shares of Common Stock to such other person upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the holder of such Warrant Certificate at the time of surrender) or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due. (e) The Company acknowledges that the bank accounts maintained by Computershare in connection with the services provided under this Agreement will be in its name and that Computershare may receive investment earnings in connection with the investment at Computershare risk and for its benefit of the funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price payments. (f) For purposes of determining whether a holder is an “Acquiring Person” under the Rights Agreement, the Company acknowledges, and the Company represents and warrants that it has taken all necessary action, if any, to ensure, that, as a result of the provisions of Section 6(e), holders shall not be deemed the “Beneficial Owner” (as defined in the Rights Agreement) of such holder’s Warrants (and shares of Common Stock issuable upon exercise thereof) to the extent that such Warrants (and shares of Common Stock issuable upon exercise thereof) would exceed the 20% Limitation. The Company represents and warrants that the Board of Directors of the Company has taken all necessary action in order to ensure that, notwithstanding any holder becoming an “interested person” under Delaware General Corporation Law Section 203 or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the holders as a result of the execution and delivery of this Agreement, such holder shall not be prohibited from exercising such holder’s Warrants (or otherwise having the right to acquire capital stock of the Company as a result of holding Warrants or Warrant Shares), except to the extent that exercising such Warrants or otherwise acquiring capital stock of the Company as a result of holding Warrants or Warrant Shares would cause such holder to exceed the 20% Limitation.

Certain Representations; Reservation and Availability of Shares of Common Stock or Cash. (a) The Company represents and warrants that this This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants and, when issued, the Warrant Shares, in each case, are free and clear of all liens and encumbrances, are fully paid and non-assessable and have been duly authorized, executed and issued by the Company and, assuming due authentication of the Warrants thereof by the Warrant Agent pursuant hereto, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company represents and warrants that, immediately prior to the consummation As of the offering described in the Registration Statementdate hereof, the authorized capital stock of the Company consists of (i) 75,000,000 400,066,666 shares of Common Stock, of which 9,216,209 (A) 5,173,399 shares of Common Stock are issued and outstanding, 2,070,000 (B) 3,000,000 shares of Common Stock are reserved for issuance upon exercise of the Warrants, (C) 30,000,000 shares are reserved for issuance upon redemption of the Series A WarrantsPreferred Stock, 1,690,500 (D) 150,000 shares of Common Stock are issuable upon exercise of Series B Warrants previously issued and not more than 827,004 outstanding warrants, and (E) 538,128 shares of Common Stock are reserved for issuance upon exercise of employee or other stock options an equity incentive plan, and (ii) 5,000,000 ii)150,000 shares of preferred stock, $.001 0.01 par value per share, of which no shares are outstanding. The Company represents and warrants that the up to 150,000 shares of Common Series A Preferred Stock issued are issuable in connection with the Offering. As of the date hereof, there are no other outstanding obligations, warrants, options or other rights to subscribe for or purchase from the holder under the Registration Statement, when issued, were free and clear Company any class of all liens and encumbrances, fully paid and non-assessable and were duly authorized by capital stock of the Company. (c) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and all other convertible securities, options and other instruments of the CompanyWarrants. (d) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Global Warrant Certificates Certificate or certificates evidencing Common Stock upon exercise of the WarrantsWarrant Shares. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of a Global Warrant Certificates Certificate or the issuance or delivery of certificates for Common Stock Warrant Shares in a name other than that of the registered holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any such certificate for such shares of Common Stock to such other person upon the exercise of any Warrants Holder until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the holder of such Warrant Certificate Holder at the time of surrender) or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due. (e) The Company acknowledges that the bank accounts maintained by Computershare in connection with the services provided under this Agreement will be in its name and that Computershare may receive investment earnings in connection with the investment at Computershare risk and for its benefit of the funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price payments. (f) For purposes of determining whether a holder is an “Acquiring Person” under the Rights Agreement, the Company acknowledges, and the Company represents and warrants that it has taken all necessary action, if any, to ensure, that, as a result of the provisions of Section 6(e), holders shall not be deemed the “Beneficial Owner” (as defined in the Rights Agreement) of such holder’s Warrants (and shares of Common Stock issuable upon exercise thereof) to the extent that such Warrants (and shares of Common Stock issuable upon exercise thereof) would exceed the 20% Limitation. The Company represents and warrants that the Board of Directors of the Company has taken all necessary action in order to ensure that, notwithstanding any holder becoming an “interested person” under Delaware General Corporation Law Section 203 or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the holders as a result of the execution and delivery of this Agreement, such holder shall not be prohibited from exercising such holder’s Warrants (or otherwise having the right to acquire capital stock of the Company as a result of holding Warrants or Warrant Shares), except to the extent that exercising such Warrants or otherwise acquiring capital stock of the Company as a result of holding Warrants or Warrant Shares would cause such holder to exceed the 20% Limitation.

Certain Representations; Reservation and Availability of Shares of Common Stock or Cash. (a) The Company represents and warrants that this This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants and, when issued, the Warrant Shares, in each case, are free and clear of all liens and encumbrances, are fully paid and non-assessable and have been duly authorized, executed and issued by the Company and, assuming due authentication of the Warrants thereof by the Warrant Agent pursuant hereto, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ ' rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company represents and warrants thatAs of July 29, immediately prior to the consummation of the offering described in the Registration Statement2013, the authorized capital stock of the Company consists of (i) 75,000,000 10,000,000 shares of Common Stock, of which 9,216,209 2,657,454 shares of Common Stock are issued and 2,596,205 shares are outstanding, 2,070,000 519,241 shares of Common Stock are reserved for issuance upon exercise of the Series A Warrants, 1,690,500 shares of Common Stock upon exercise of Series B Warrants and not more than 827,004 590,000 shares of Common Stock are reserved for issuance upon exercise of employee stock. There are no other outstanding obligations, warrants, options or other rights to subscribe for or purchase from the Company any class of capital stock options and (ii) 5,000,000 shares of preferred stock, $.001 par value per share, of which no shares are outstanding. The Company represents and warrants that the shares of Common Stock issued to the holder under the Registration Statement, when issued, were free and clear of all liens and encumbrances, fully paid and non-assessable and were duly authorized by the Company. (c) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and all other convertible securities, options and other instruments of the CompanyWarrants. (d) The Warrant Agent will create a special account for the issuance of Warrants and Warrant Shares. The Company shall provide an opinion of counsel prior to the Issuance Date to set up a reserve of Warrants and Warrant Shares. The opinion shall state that: (i) the Warrants and the Warrant Shares are registered under the Securities Act, or are exempt from such registration; (ii) the Warrants are duly authorized, and, when issued and distributed by the Company in accordance with and in the manner described in the registration statement and the prospectus supplement, the Warrants will be validly issued, fully paid and non-assessable; and (iii) the Warrant Shares are duly authorized, and, when issued and sold by the Company and delivered by the Company against receipt of the exercise price therefor, in accordance with and in the manner described in the registration statement, the prospectus supplement and the Warrants, will be validly issued, fully paid and non-assessable. (e) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Warrants or Warrant Certificates or certificates evidencing Common Stock upon exercise of the WarrantsShares. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock Warrant Shares in a name other than that of the registered holder Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any such certificate for such shares of Common Stock to such other person Warrant Shares upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the holder of such Warrant Certificate at the time of surrender) or until it has been established to the Company’s 's reasonable satisfaction that no such tax or governmental charge is due. (e) The Company acknowledges that the bank accounts maintained by Computershare in connection with the services provided under this Agreement will be in its name and that Computershare may receive investment earnings in connection with the investment at Computershare risk and for its benefit of the funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price payments. (f) For purposes of determining whether a holder is an “Acquiring Person” under the Rights Agreement, the Company acknowledges, and the Company represents and warrants that it has taken all necessary action, if any, to ensure, that, as a result of the provisions of Section 6(e), holders shall not be deemed the “Beneficial Owner” (as defined in the Rights Agreement) of such holder’s Warrants (and shares of Common Stock issuable upon exercise thereof) to the extent that such Warrants (and shares of Common Stock issuable upon exercise thereof) would exceed the 20% Limitation. The Company represents and warrants that the Board of Directors of the Company has taken all necessary action in order to ensure that, notwithstanding any holder becoming an “interested person” under Delaware General Corporation Law Section 203 or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the holders as a result of the execution and delivery of this Agreement, such holder shall not be prohibited from exercising such holder’s Warrants (or otherwise having the right to acquire capital stock of the Company as a result of holding Warrants or Warrant Shares), except to the extent that exercising such Warrants or otherwise acquiring capital stock of the Company as a result of holding Warrants or Warrant Shares would cause such holder to exceed the 20% Limitation.

Certain Representations; Reservation and Availability of Shares of Common Stock or Cash. (a) The Company represents and warrants that this This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants and, when issued, the Warrant Shares, in each case, are free and clear of all liens and encumbrances, are fully paid and non-assessable and have been duly authorized, executed and issued by the Company and, assuming due authentication of the Warrants thereof by the Warrant Agent pursuant hereto, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company represents and warrants that, immediately prior to the consummation As of the offering described in the Registration Statementdate hereof, the authorized capital stock of the Company consists of (i) 75,000,000 200,000,000 shares of Common Stock, of which 9,216,209 [55,182,174] shares of Common Stock are issued and outstanding, 2,070,000 shares of Common Stock are reserved for issuance upon exercise of the Series A Warrants, 1,690,500 Warrants up to 23,561,356 shares of Common Stock issuable upon the exercise of Series B Warrants other outstanding warrants and not more than 827,004 4,025,000 shares of Common Stock are reserved for issuance upon exercise of employee or other stock options and (ii) 5,000,000 40,000,000 shares of preferred stock, $.001 0.0001 par value per share, of which no shares are outstanding. The There are no other outstanding obligations, warrants, options or other rights to subscribe for or purchase from the Company represents and warrants that the shares any class of Common Stock issued to the holder under the Registration Statement, when issued, were free and clear capital stock of all liens and encumbrances, fully paid and non-assessable and were duly authorized by the Company. (c) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and all other convertible securities, options and other instruments of the CompanyWarrants. (d) The Warrant Agent will create a special account for the issuance of Common Stock upon the exercise of Warrants. The Company shall provide an opinion of counsel prior to the Initial Exercise Date to set up the reserve of Common Stock. The opinion shall state that all shares of Common Stock underlying the Warrants, upon payment of the exercise price, in accordance with the terms of the Warrants are: (1) registered under the Securities Act of 1933, as amended, and all appropriate State securities law filings have been made with respect to the Common Stock; and (2) validly issued, fully paid and non-assesable (e) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock in a name other than that of the registered holder Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any such certificate for such shares of Common Stock to such other person upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the holder of such Warrant Certificate at the time of surrender) or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due. (e) The Company acknowledges that the bank accounts maintained by Computershare in connection with the services provided under this Agreement will be in its name and that Computershare may receive investment earnings in connection with the investment at Computershare risk and for its benefit of the funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price payments. (f) For purposes of determining whether a holder is an “Acquiring Person” under the Rights Agreement, the Company acknowledges, and the Company represents and warrants that it has taken all necessary action, if any, to ensure, that, as a result of the provisions of Section 6(e), holders shall not be deemed the “Beneficial Owner” (as defined in the Rights Agreement) of such holder’s Warrants (and shares of Common Stock issuable upon exercise thereof) to the extent that such Warrants (and shares of Common Stock issuable upon exercise thereof) would exceed the 20% Limitation. The Company represents and warrants that the Board of Directors of the Company has taken all necessary action in order to ensure that, notwithstanding any holder becoming an “interested person” under Delaware General Corporation Law Section 203 or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the holders as a result of the execution and delivery of this Agreement, such holder shall not be prohibited from exercising such holder’s Warrants (or otherwise having the right to acquire capital stock of the Company as a result of holding Warrants or Warrant Shares), except to the extent that exercising such Warrants or otherwise acquiring capital stock of the Company as a result of holding Warrants or Warrant Shares would cause such holder to exceed the 20% Limitation.

Certain Representations; Reservation and Availability of Shares of Common Stock or Cash. (a) The Company represents and warrants that this This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants and, when issued, the Warrant Shares, in each case, are free and clear of all liens and encumbrances, are fully paid and non-assessable and have been duly authorized, executed and issued by the Company and, assuming due authentication of the Warrants thereof by the Warrant Agent pursuant heretohereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereofthereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company represents As of the date hereof and warrants that, immediately prior to the consummation of the offering described in the Registration StatementOffering, the authorized capital stock of the Company consists of (i) 75,000,000 120,000,000 shares of Common Stock, of which 9,216,209 909,013 shares of Common Stock are issued and outstanding, 2,070,000 and (ii) 5,000,000 shares of undesignated preferred stock, par value $0.001 per share, none of which are issued and outstanding. As of the date hereof, an aggregate of 4,688,341 shares of Common Stock are reserved for issuance upon exercise of the Series A Warrants, 1,690,500 shares of Common Stock upon exercise of Series B Warrants and not more than 827,004 shares of Common Stock are reserved for issuance upon exercise of employee or other stock options and (ii) 5,000,000 shares of preferred stock, $.001 par value per share, of which no shares are outstanding. The Company represents and warrants that the shares of Common Stock issued to the holder under Except as disclosed in the Registration Statement, when issuedthere are no other outstanding obligations, were free and clear warrants, options or other rights to subscribe for or purchase from the Company any class of all liens and encumbrances, fully paid and non-assessable and were duly authorized by capital stock of the Company. (c) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and all other convertible securities, options and other instruments of the CompanyWarrants. (d) The Warrant Agent will create a special account for the issuance of Common Stock upon the exercise of Warrants. (e) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock in a name other than that of the registered holder Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any such certificate for such shares of Common Stock to such other person upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the holder Holder of such Warrant Certificate at the time of surrender) or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due. (e) The Company acknowledges that the bank accounts maintained by Computershare in connection with the services provided under this Agreement will be in its name and that Computershare may receive investment earnings in connection with the investment at Computershare risk and for its benefit of the funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price payments. (f) For purposes of determining whether a holder is an “Acquiring Person” under the Rights Agreement, the Company acknowledges, and the Company represents and warrants that it has taken all necessary action, if any, to ensure, that, as a result of the provisions of Section 6(e), holders shall not be deemed the “Beneficial Owner” (as defined in the Rights Agreement) of such holder’s Warrants (and shares of Common Stock issuable upon exercise thereof) to the extent that such Warrants (and shares of Common Stock issuable upon exercise thereof) would exceed the 20% Limitation. The Company represents and warrants that the Board of Directors of the Company has taken all necessary action in order to ensure that, notwithstanding any holder becoming an “interested person” under Delaware General Corporation Law Section 203 or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the holders as a result of the execution and delivery of this Agreement, such holder shall not be prohibited from exercising such holder’s Warrants (or otherwise having the right to acquire capital stock of the Company as a result of holding Warrants or Warrant Shares), except to the extent that exercising such Warrants or otherwise acquiring capital stock of the Company as a result of holding Warrants or Warrant Shares would cause such holder to exceed the 20% Limitation.